Why Devin Nunes's Memo Would Never Hold Up in Court

It reads like a shoddy legal brief. Specifically, one written in haste by an attorney who knows he doesn’t have the law or the facts on his side so he gins up a compelling narrative, hoping the reviewing court or opposing counsel doesn’t dig too deep into the record to find all the holes. Actually, that distillation does the Nunes memo credit. There is no compelling narrative here and one could make a plausible argument that any lawyer who drafted and filed this nonsense with a court would violate Rule 11, the rule of procedure designed to prohibit attorneys from filing “frivolous” documents in court.

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But there is nothing frivolous politically or morally about the publication of the Nunes memo, which I believe is the manifestation of a chilling conspiracy between the White House and its most supine supporters on Capitol Hill to aid the Russians and undermine the nation’s law enforcement and intelligence apparatus. We already knew before it was released that the memo is not the whole truth. It can’t be. We already knew that it isn’t a version of any truth worth relying on since we don’t know what we don’t know about the intelligence behind it. One could summarize the Bible and turn it into an ode to the Devil himself, right?

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And that’s essentially what Republican staffers have done in this memo to GOP lawmakers on the House Intelligence Committee. They’ve written what amounts to a series of political talking points, like the kind you would see in a campaign fundraising letter, designed to make the FBI and the Justice Department look bad, and to make the targets of the investigation, Carter Page and George Papadopoulos, look like victims of dark chicanery. The most galling portion, perhaps, is the part where its writers, who clearly have cherry-picked their facts from a larger set of still-classified documents, blast federal law enforcement officials for omitting “material and relevant” information from their submission to a Foreign Intelligence Surveillance Court.

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This memo, this creature, would not stand up in court and it should not stand up in the court of public opinion. No judge would allow it into evidence, no expert witness would rely on it for an opinion, no one would swear to its contents under penalty of perjury. It raises countless more questions than it answers—and, really, the only question it answers accurately is how far Rep. Devin Nunes and his fellow travelers at the House Intelligence Committee have been willing to go to protect the White House from an investigation into Russian tampering, an investigation we know that a vast majority of Americans want to see completed.

No judge would allow it into evidence, no expert witness would rely on it for an opinion.

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There is not much “there” there in any event. The memo suggests, at its core, that federal officials misled the court by not telling the FISC judge that Christopher Steele was not a fan of Donald Trump or that his work was paid for by the Democratic National Committee. But, as Orin Kerr pointed out a few days ago, plenty of informants, or law enforcement sources, are biased for one reason or another and there is no legal requirement that the feds, or local cops, have to share that information in every case where a judge is asked to review a warrant application. In most cases these biases are deemed irrelevant to the question of whether the warrant should issue.

Implicit in the argument in the memo is that this omission on the part of the feds about Steele, if indeed there was such an omission, was dispositive to the judge’s decision to endorse the warrant. That is to say that the judge would not have signed off on the warrant if he or she had been told everything about Steele. That’s a terrible argument to make and we can say so, today, even without knowing all of the facts and evidence the Nunes memo omits. These sorts of warrants aren’t handed out by federal judges like candy at Halloween. And they aren’t sought by federal law enforcement officials without extensive offers of proof that, in this case, would have gone far beyond what Steele alleged. Don’t forget, Page was under surveillance in 2013, three years before the events at the heart of the Nunes memo.

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Earlier this week Asha Rangappa, a former FBI special agent, wrote at Just Security that she wanted to see five basic questions answered by the Nunes memo. The document, I suspect she will say, goes 0-5. It does not tell us what other evidence the feds have or had against Page. It doesn’t tell us anything about the circumstances that drew federal attention to Page to begin with. It doesn’t tell us that Deputy Attorney Rod Rosenstein was involved in 2016 in some vast conspiracy with other law enforcement officials to subvert the election chances of Donald Trump or improperly undermine his presidency.

And it doesn’t tell us boo about Robert Mueller, the special counsel. If this is the best Trump and Nunes can come up with to derail the special counsel, I suspect they’ve failed. Good news for those of us hoping that someone, somewhere, pushes through Congressional obstruction and presidential obfuscation to get to the heart of what all of these Trump people were doing so often in the company of all those Russians. Another thing the Nunes memo doesn’t do? It didn’t accuse any federal law enforcement officials of breaking any laws or rules or procedures.

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The big winner in all of this, of course, is Vladimir Putin. What a week for him! On Monday, his man in Washington, Donald Trump, refused to impose those sanctions Congress voted overwhelmingly to impose on the Russians as punishment for their interference in our elections. And today the White House and Congressional Republicans made this reckless move to undermine the credibility of America’s intelligence and law enforcement communities. As Sen. John McCain, the ailing Republican from Arizona just put it, “if we continue to undermine our own rule of law, we are doing Putin’s work for him.” Indeed, Donald Trump and Devin Nunes are doing just that.

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